I’m A F….ing Idiot To Let A Pregnant Girl Work Behind The Bar

Myth, fears and outdated paternalistic notions about pregnancy still top the charts for scrutiny by the EEOC.

Puzzle, Sense, Nonsense, Useful, Stupid

I have often cited the EEOC’s six national priorities set forth in its Strategic Enforcement Plan (“SEP”).   One such priority is “to address emerging and developing issues … including issues involving the ADA and pregnancy-related limitations.”

In this regard, I have also cautioned often about (1) employers not succumbing to myths and fears about disabilities or pregnancy, and not attempting to “protect” a pregnant employee or her fetus; and (2) the EEOC’s penchant for going after the “low hanging fruit” of ADA and pregnancy-related violations by health care or medical facilities.

Two relatively recent cases underscore these points.

“A Pregnant Bartender Could Get Injured”

In the first case, a bartender was fired by an Arizona bar because she was pregnant, according to the EEOC’s lawsuit. One of the owners was heard on an audio recording played in court saying:

“There’s going to be a whole number of people that I would be offending by allowing a pregnant person to be behind the bar. They might look at it as the owner’s a f—ing idiot they’re letting a girl that’s pregnant that could get injured behind the bar bartending right now. How irresponsible are those guys?”

This was, of course, in violation of the Pregnancy Discrimination Act (“PDA”), and the bartender was awarded a total of $41,647 in total damages and back pay.

Plaintiff said “I brought this charge because women have just as much of a right to work as men, and pregnancy doesn’t change that.”

Girl, Young, Woman, Beauty, Model, Hair

Low Hanging Fruit: Another Medical Facility Nailed For ADA and PDA Discrimination

In the second case, the EEOC settled an ADA and Pregnancy Discrimination Act lawsuit for $132,000, in which it alleged that a Pennsylvania nursing home refused to accommodate a long-time nurse who had undergone a surgical procedure relating to her disability, “a reproductive system impairment.”

She asked that she not be required to lift more than 25 pounds, but instead “was put on indefinite leave because of her pregnancy and disability and told [] to re-apply after she gave birth and no longer had any restrictions.” In the past, the company “had accom­modated non-pregnant employees with similar lifting restrictions.”

After she gave birth and sought to be rehired, the company refused and “engaged in an unlawful medical inquiry.”

The EEOC district director said that “Employers must be aware of the intersection between the ADA and Title VII’s pregnancy discrimination prohibitions. This settlement should prompt all employers to review their reasonable accommodation policies and practices now to make sure they are compliant with both laws.”

Takeaway:  Employers must be aware that the EEOC is serious — very serious — about the PDA and the ADA, and that it does not take kindly to best-of-intentioned paternalistic (and outdated) notions advanced by employers that they are acting in the best interests of the pregnant employee.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]